' MUHAMMAD FARRUKH MAHMUD, J.---Abdul Sattar alias Muhammad Ilyas (appellant) was tried by the learned Additional Sessions Judge, Gujranwala, in case F.I.R. No,397 registered at Police Station Model Town, Gujranwala, for offence under section 302, P.P.C. For having committed the murder of Ijaz Ahmad. Vide judgment dated 29-11-2001, the learned trial Judge convicted the appellant for offence under section 302, P.P.C. And sentenced him to death plus payment of one lac rupees as compensation to the legal heirs of the deceased, in default whereof he was to undergo S.I. For six months.
2. Abdul Sattar alias Muhammad Ilyas-appellant has challenged his above noted conviction and sentence by filing the instant appeal. Murder Reference No,857 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution case per complaint Exh.PC made by Hadayat Ullah, complainant/P.W.4, to Muhammad Mansha, A.S.-I./P.W.7, which based the registration of formal F.I.R. Exh.PC/1, are that on 17-7-2000 at 6-30 p.m. The complainant was present in his house when he received information that his son Ijaz Ahmad,' in injured condition, had been admitted in Civil Hospital, Gujranwala, whereupon he along with Muhammad Ashfaq and Asghar Ali/P.W.5 reached the aforesaid hospital where Ijaz Ahmad told that he was standing at corner of the street when the appellant sprinkled kerosene oil on him and set him on fire, as a result whereof he was seriously burnt. Then the appellant himself took him to the hospital and after getting him admitted there fled away.
' As to the motive, it was alleged that 2/3 days prior to the occurrence, a quarrel took place between the appellant and Ijaz Ahmad. The appellant had threatened Ijaz Ahmad that he would not spare him.
4. On 17-7-2000 Muhammad Mansha, A.S.-I./P.W.7, was present in connection with patrol duty at Lorry Adda where Hadayat Ullah/complainant appeared before him and submitted complaint/application Exh.PC, which was sent to the police station for registration of the case. The A.S.-I./Investigating Officer went to the spot and prepared its site-plan Exh.PF. Then he went to the hospital where he after obtaining permission from the doctor recorded the statement of injured Ijaz Ahmad Exh.PG. On entrustment of investigation on 18-7-2000, on receipt of information about the death of Ijaz Ahmad, Karamat Ali, S.-I./P.W.8, went to the hospital and got post-mortem.
Examination on the dead body of the deceased. He arrested Abdul Sattar alias Ilyas-appellant on 23-7-2000. The appellant, while in custody on 26-7-2000, led to the recovery of plastic gallon P-1 which was taken into possession vide memo. Exh.PD, attested by Asghar Ali/P.W.5 and one Muhammad Akbar. After completion of investigation, the appellant was sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced nine witnesses. Hadayat Ullah and Asghar Ali, P.Ws. 4 and 5, stated that Ijaz Ahmad (deceased) had told them in the hospital that the appellant had sprinkled kerosene oil on him and set him on fire on account of a quarrel which took place between them 2/3 days prior to the occurrence. In addition to that, Asghar Ali/P.W.5 also stated about the recovery of plastic gallon at the instance of the appellant. Dr. Salman Rehan/P.W.1 medically examined Ijaz on 17-7-2000 at 6-20 p.m. And issued MLR Exh.PA in respect of Ijaz Dr. Abdul Shakoor/P.W.5, who conducted post-mortem examination on the dead body of the deceased, while observing an injury "superfacial burn on all the body from head to foot" on his person, opined that death was due to cardio pulmonary arrest from hypovolemic, hypo polemic shock as a result of 100% burn; that the injury was sufficient to cause death in ordinary course of nature; and that probable time between injury and death was about 4 to 8 hours, while between death and post- mortem examination was 12 to 18 hours. Muhammad Mansha, A.S.-I./P.W.7, stated about the drafting and dispatching of complaint of the complainant and the investigation thereafter.
Karamat Ali, S.-I./ P.W.8, also partly investigated the case. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication due to enmity with the father of the deceased. He, however, stated that Ijaz Ahmad was shifted by him to the hospital in order to save his life. Neither the appellant appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in defence.
8. Learned counsel for the appellant contends that it was an unwitnessed occurrence; that dying declaration was not reliable as there were variations in the two statements of Ijaz Ahmad deceased; that the dying declaration was not supported either by the circumstances of the case or by corroborative evidence; that the Investigating Officer (10) had been recording two statements of Ijaz deceased without getting permission from the doctor; that the dying declaration does not contain any time and is not reliable.
9. Conversely, the learned counsel for the complainant has submitted that as far as occurrence is concerned, in all the dying declarations, the appellant has been named as the one who had set the. Deceased on fire; that the statements are supported by the medical evidence and recovery of Jurry cane; that there was no reason to implicate the appellant in this case falsely. The learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant. They support the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the entire record with their assistance.
11. The prosecution case rests on the oral statement of Ijaz Ahmad deceased made before his father Hadayat Ullah/P.W.4 and his neighbourer Asghar Ali P.W./5. The statement is admissible as dying declaration under Article 46 of the Qanun-e-Shahadat Order, 1984. Muhammad Mansha, A.S.-I./P.W.7, also recorded two statements of Ijaz Ahmad at the hospital. Out of the two, Exh.PG which contained the thumb-impression of Ijaz Ahmad is available on the record of the case.
According to F.I.R., at about 6-30 p.m., Hadayat Ullah complainant received information that his son was lying in injured condition in Civil Hospital, Gujranwala. He along with Ashfaq who was not produced during trial and Asghar Ali/P.W, reached the hospital, where Ijaz disclosed to them that he was standing at the end of the street, while Muhammad Ilyas threw kerosene oil on him and set him on fire. However, after some time, in very serious condition, Ijaz was taken to the hospital by Muhammad Ilyas appellant himself. Ilyas left the hospital after admission of Ijaz. The motive behind the occurrence was that 2/3 days prior to the occurrence, some altercation took place between Ijaz and Ilyas. The latter threatened Ijaz with dire consequences. The statement of Ijaz Ahmad does not reveal that while he was set on fire, the occurrence was seen by any passerby or the resident of the locality. Similarly, no witness who had seen the setting of fire was produced during trial. It was not disclosed in the F.I.R. That Ilyas brought Ijaz deceased in the rickshaw which was being driven by Arif real uncle of the deceased. However, during trial it was brought on the record that the rickshaw was being driven by Muhammad Arif, real uncle of the deceased. In his statement under section 342, Cr.P.C., the appellant in answer to Question No,2 stated that the deceased was shifted by him to the hospital in order to save his life. Dr. Salman Rehan/P.W.l, who initially examined Ijaz Ahmad, stated that at the time of examination, Ijaz Ahmad was conscious and restless and was suffering from 100% burns. The medico-legal report Exh.PA prepared by P.W.l also reveals that it was Muhammad Ilyas appellant who had taken Ijaz to the hospital. In these circumstances, it does not appeal to reason that Ilyas after setting the deceased oh fire would himself carry him to the hospital, while he was conscious at the great risk of his implication, as Ijaz could very well tell the doctor that it was Ilyas who had set him on fire. Moreso, he would not carry Ijaz to the hospital in the rickshaw of his real uncle Ijaz who was not produced during trial, as Arif would not have spared the appellant who had attempted to take the life of his nephew. The story given in the F.I.R. And the story given in the statement of Ijaz in Exh.PG recorded by the Investigating Officer contradict each other. In F.I.R., it was stated that Ijaz was set on fire at the end of the street, while in Exh.PG, it was stated that Ijaz was confined in the house by Ilyas and at 4-00 p.m. Ilyas sprinkled kerosene oil on the body of Ijaz and set it on fire. It was further stated that as the room was locked, his cries could not be heard by anyone. Subsequently, Ilyas brought him to the hospital in the rickshaw of Muhammad Arif, uncle of Ijaz, and after his admission in the hospital, both Ilyas appellant and Arif left. The date was mentioned in Exh.PG but the time was not recorded. The subsequent story given in Exh.PG is not only different from the story given in F.I.R. But is also not supported by any evidence.
In case the deceased was set on fire in the room, then some damage should have been caused to the room. On the contrary, nothing was recovered from the room. There is a lot of difference between the street and the room of a residential house. The Investigating Officer also did not take any permission before recording the statement of the deceased nor he recorded it in the presence of the doctor. He admitted during cross examination that first statement of the deceased recorded under section 161, Cr.P.C. And the subsequent statement. Exh.PG were different from each other. The prosecution case is supported by the medial evidence to the extent that the deceased lost his life due to burns caused by fire and not beyond. The recovery of plastic gallon from his house at the instance of the appellant is of no consequence for the various reasons. Firstly that the occurrence took place on 17-7-2000, while the appellant was arrested on 23-7-2000, after six days of the occurrence; he would not have kept the cane/gallon in his house for such a long time; secondly that the cane had no distinguishing features and such-like canes are commonly found in the houses; thirdly that Asghar Ali, who was also an eyewitness, was produced in support of the recovery; and fourthly that manipulation in the date of memo. Exh.PD is obvious. In somewhat similar circumstances where the case of the prosecution rested solely on dying declaration unsupported by any corroborative evidence, the Honourable Supreme Court maintained the acquittal of the accused in the case of Hameed Gul v. Tahir and 2 others (2006 SCM R 1628). It is available on record that the deceased was a narcotics addict and a case was registered against him. He narrated different stories to the P.Ws. And the Investigating Officer. Hence, dying declaration was not worthy of credence. The prosecution case is not free from doubt. This appeal is allowed and the judgment passed by the learned trial Court it set aside. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other ease. The death sentence is not confirmed. The Murder Reference is answered in the negative.